The Supreme Court declined to grant certiorari on the substantive constitutional issue in United States v. Sanchez-Gomez — the validity of a district-wide policy permitting United States marshals to place full restraints on defendants during most non-jury proceedings, even without a determination of cause to restrain the defendant. But the disputed nature of any constitutional right to be free from shackling hovers over the jurisdictional issues the court will resolve, with long-term consequences for appellate review and constitutional litigation challenging policies related to criminal proceedings.

But before we get into those, we try something new– flagging a few interesting cert petitions that we’ll watch as they make their way through the court’s discussion lists. There are also birthdays and anniversaries to celebrate, as well as some key corrections to issue.

Today the justices kick off the March session by hearing oral argument in Sveen v. Melin, which asks whether a state law that automatically nullifies the designation of a former spouse as a life-insurance beneficiary upon divorce violates the Constitution’s contracts clause. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Shelby Garland and Jonathan Kim preview the case for Cornell Law School’s Legal Information Institute. Kimberly Robinson and Jordan Rubin discuss Sveen at Bloomberg Law’s Cases and Controversies podcast. Counting to 5 (podcast) previews the three cases that will be argued this week, and The George Washington Law Review’s On the Docket blog offers previews of all the cases in the March argument session.

At the Associated Press, Mark Sherman reports on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that, among other things, requires licensed centers to post notices to inform patients about the availability of state-funded family-planning services, including abortion; he notes that although the “justices won’t be dealing with broader questions about the right to an abortion, the outcome could affect not only California’s law, but those in other states that have been shaped by anti-abortion groups.” The Associated Press also offers differing accounts from two women who visited crisis pregnancy centers. Additional coverage of NIFLA, which will be argued tomorrow, comes from Robert Barnes for The Washington Post, Richard Wolf at USA Today and Andrew Chung at Reuters. At The Federalist, Mark Miller argues that “[t]he First Amendment includes the right not to speak, but the FACT Act takes that right away.” At Jost on Justice, Kenneth Jost maintains that NIFLA “represents the third time this term that political conservatives have urged justices committed to an originalist interpretation of the Constitution to find in the Free Speech Clause meanings that James Madison and the other Framers could never have intended or contemplated.”

Issues: (1) Whether government licensees who were never charged with a crime can demonstrate a violation of a Fifth Amendment right to refuse to answer regulatory-related questions without threat of a regulatory penalty, unless they were offered immunity; and (2) whether the licensees demonstrated a violation of clearly established law as to a right against self-incrimination and as the due-process right to a timely post-exclusion hearing.

At NYU, Ginsburg disagreed with the idea that she has consciously altered the way she speaks at oral argument so as to minimize the chances of being interrupted. A 2017 study on interruptions at the Supreme Court posited that the four female justices changed their speech patterns over their years on the bench to omit polite, prefatory statements, such as “May I ask.” In her case, however, Ginsburg clarified that “I adopted the ‘May I ask’ many years after I became a justice. It was from observing my colleague John Paul Stevens, who asked very challenging questions but always began in such a gentle way. The only effort I make is to keep my questions as short as possible, so I don’t eat into counsel’s time.” At the same time, Ginsburg mused, “I do think that article has gotten a lot of publicity, and let’s see if it does affect my colleagues. I think it well may.”

At Newsweek, Marie Solis reports on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that, among other things, requires licensed centers to post notices to inform patients about the availability of state-funded family-planning services, including abortion; she notes that, according to one expert, “the First Amendment community often finds itself divided over free speech issues that have to do with consumer services, like those CPCs provide.” At Take Care, David Gans weighs in on the case, arguing that the centers’ “unforgiving view of the First Amendment—which has never been the law and is badly out of step with decisions such as Citizens United—would gut a vast array of disclosure laws and leave consumers in the dark about critically important matters.” Additional commentary comes from Maggie Jo Buchanan and others at the Center for American Progress and Robin Marty at Dame.

Briefly:

For the Los Angeles Times, David Savage reports on a pending cert petition, Kisela v. Hughes, which involves the standards for granting qualified immunity to police officers in Section 1983 civil-rights suits, noting that “[i]n recent years, the justices have regularly shielded police from being sued, even when officers wrongly shoot innocent people in their own homes.”

Issue: Whether the “neutral principles of law” approach to resolving church property disputes requires courts to recognize a trust on church property even if the alleged trust does not comply with the state’s ordinary trust and property law.

On March 20 at 5:30 p.m. PDT, professors Richard Hasen and Adam Winkler will discuss their newly released books about the Supreme Court. Hasen is the author of “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption,” and Winkler is the author of “We The Corporations: How American Businesses Won Their Civil Rights.” This event, which will be held at UC Irvine School of Law, will also be able by livestream at this link.

Fix the Court analyzes records it obtained from the U.S. Marshals Service documenting the security provided for the justices when they travel, suggesting that “the justices may not have adequate coverage at a time when threats against public figures are on the rise and when, for several of them, frequent health monitoring is paramount.” At Law.com, Tony Mauro reports that the documents “appear to show confusion and a lack of coordination after the death of U.S. Supreme Court Justice Antonin Scalia in West Texas in February 2016.”

At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Reilly Stephens urge the court to grant the cert petition in Ellison v. United States, a securities-fraud case that they argue “represents yet another example of the overcriminalization that has run rampant throughout our legal system.”

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.